Monday, December 2, 2013
Kent D. Schenkel (New England Law, Boston) has recently published an article entitled, The Trust-as-Will Portmanteau: Trill or Spork? (Nov. 12, 2013). Provided below is the abstract to the article from SSRN:
This paper revisits the rise to prominence of the revocable trust as a favored device for disposing of decedents’ estates. It reviews the process by which the revocable trust became the will substitute of choice and suggests that this “nonprobate will” was not necessarily inevitable, nor has it fully played out. Reflecting on legal reform efforts intended to solve the will’s anachronisms by making the revocable trust more will-like, it recommends that reformers not limit their labors to those aimed at building a more useful revocable trust. The article suggests that planning ideas can also be based on new ways of thinking about the will in combination with the revocable trust. It points out that avoiding probate, the primary motivation behind the functional will movement, could be accomplished by clear rules that do not deviate much, if at all, from rules already in place.